2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-20-2015

USA v. Kareem Russell

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Recommended Citation

"USA v. Kareem Russell" (2015). 2015 Decisions. Paper 276.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 12-2987

________________

UNITED STATES OF AMERICA

v.

KAREEM RUSSELL

a/k/a Reem,

Kareem Russell,

Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-10-cr-00186-001)

District Judge: Honorable Gene E. K. Pratter

_____________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 20, 2015

Before: SMITH, JORDAN, SLOVITER, Circuit Judges.

(Opinion filed: March 20, 2015)

______________________

OPINION

______________________

 



 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

SLOVITER, Circuit Judge.

Kareem Russell directly appeals his conviction for possession of a firearm by a 

convicted felon in violation of 18 U.S.C. § 922(g). Russell was arrested after police 

searched his home and found a loaded gun in Russell’s bedroom while Russell, a 

convicted felon, was in the room with his girlfriend. Russell raises two issues. First, 

Russell contends that the record on appeal is incomplete because the trial transcript omits 

the testimony of three Government witnesses. Therefore, he argues that the record is not 

sufficient to permit appellate review. Second, before Russell’s trial, the Philadelphia 

Police Department destroyed the firearm that led to Russell’s conviction, and Russell 

argues that all evidence pertaining to the firearm should have been suppressed. For the 

reasons discussed below, we will affirm.

I. Sufficiency of the Record on Appeal1

Under the Federal Rules of Appellate Procedure, within 14 days after filing a 

notice of appeal, the appellant must either order “a transcript of such parts of the 

proceedings not already on file as the appellant considers necessary,” or “file a certificate 

stating that no transcript will be ordered.” Fed. R. App. P. 10(b). Where the proceedings 

were not recorded or a transcript is unavailable, “the appellant may prepare a statement of 

the evidence or proceedings from the best available means, including the appellant’s 

recollection.” Id. 10(c). The appellee may then serve objections or proposed 

amendments. Id. “The statement and any objections or proposed amendments must then 

 

1 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 

28 U.S.C. § 1291.
3

be submitted to the district court for settlement and approval. As settled and approved, 

the statement must be included by the district clerk in the record on appeal.” Id. A mere 

absence of transcripts “does not constitute per se reversible error.” United States v. 

Sierra, 981 F.2d 123, 125 (3d Cir. 1992). Rather, “to be successful with an argument that 

because a portion of the trial transcript is missing the case ‘warrants reversal,’ [a 

defendant] must make ‘a specific showing of prejudice.’” United States v. Sussman, 709 

F.3d 155, 163 (3d Cir. 2013) (quoting Sierra, supra).

After protracted attempts to obtain trial transcripts (frustrated through no fault of 

his own, and during which time this court granted several extensions of time), Russell 

succeeded in obtaining only a rough transcription replete with mistakes and omissions, 

and could not obtain audio recordings of the trial. On April 21, 2014, Russell filed a 

statement of the evidence under Rule 10(c), which included the incomplete, rough 

transcript and set forth the record’s deficiencies. However, since then, the Government 

recovered audio recordings of Russell’s trial by investigating the court reporter and 

running a forensic examination on her laptop. The court reporting company used those 

recordings to create a more complete and accurate transcript, which the Government 

submitted with its response to Russell’s statement of the evidence. Russell concedes that 

the record now contains complete and accurate transcripts for two of the three days of his 

trial (April 9, and April 11, 2012). The court reporting company reconstructed the third 

day’s proceedings (April 10, 2012) in part, and Russell does not object to the portion of 

the April 10th proceedings for which a transcript now exists. However, the April 10th 

transcript is incomplete: the audio recordings did not include (and therefore the 
4

transcripts do not include) complete testimony from three Government witnesses. It is to 

these omissions that Russell now objects.2

In its response to Russell’s statement of the evidence, the Government attempted 

to reconstruct the missing testimony. It stated that one of those witnesses, Philadelphia 

Police Officer Jeffrey Hampton, had testified (and been subject to cross examination) the 

day before at a pretrial hearing, and that his testimony at trial was identical to his 

testimony at the pretrial hearing. Russell provided no recollection to the contrary; instead 

he merely stated that he cannot recall the substance of Hampton’s testimony. The other 

two witnesses were firearms experts; the Government contended (and both parties’ 

closing arguments reflect) that this testimony was uncontroversial, going to the 

uncontested interstate commerce element of the crime, and whether the gun fit the 

statutory definition of a “firearm.” Again, Russell offered no specific recollection 

contrary to the Government’s reconstruction, nor does he point to what prejudice he 

suffered by any of these transcripts’ omission. The District Court adopted and approved 

of the Government’s Statement of the Evidence.

Russell has done no more on appeal than he did before the District Court to 

demonstrate any prejudice he may have suffered based on these missing transcripts. 

Therefore, the omission of these portions of the trial transcripts was harmless. See 

Sussman, 709 F.3d at 163.

 

2 Russell filed his opening brief in this appeal before the Government filed the improved 

transcripts. Russell declined to file a revised brief to reflect the current state of the record 

despite being given an opportunity to do so. 
5

II. Suppression of Evidence

Before trial, the Philadelphia Police Department destroyed the gun that led to 

Russell’s conviction for being a felon in possession of a firearm. The police 

photographed the gun both as they found it and after removing it from the closet where 

they found it. Those photographs were presented at trial. Russell also admitted in a 

signed statement that the gun was in his bedroom, and that he knew it was there. Russell 

argues that all evidence related to the gun should have been suppressed. 

Whatever duty the Constitution imposes on the States to 

preserve evidence, that duty must be limited to evidence that 

might be expected to play a significant role in the suspect’s 

defense. To meet this standard of constitutional materiality, 

evidence must both possess an exculpatory value that was 

apparent before the evidence was destroyed, and be of such a 

nature that the defendant would be unable to obtain 

comparable evidence by other reasonably available means.

California v. Trombetta, 467 U.S. 479, 488-89 (1984) (internal citations omitted). 

“[U]nless a criminal defendant can show bad faith on the part of the police, failure to 

preserve potentially useful evidence does not constitute a denial of due process of law.” 

Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

Here, Russell fails to show that police acted in bad faith in destroying the gun. 

The police destroyed the gun as part of a bulk weapon destruction process following their 

standard evidence retention and destruction procedures. Russell also fails to show that 

the gun would have possessed any exculpatory value, let alone exculpatory value that 

would have been apparent before it was destroyed. The existence of a gun would, on its 

face, be inculpatory, not exculpatory. Nor could the evidence Russell claims he would 
6

have gained from the gun—fingerprints and DNA evidence—have actually been 

exculpatory in this case. The Government did not offer DNA or fingerprint evidence at 

trial; the Government states that the police had not even tested the gun for prints. As the 

Government aptly notes, “In this situation, Russell never would have tested the gun 

himself; the result could only make things worse (if his prints were found), not better.” 

Appellee’s Br. at 29-30. For both of these reasons, the gun’s destruction did not deny 

Russell due process, and evidence related to the gun should not have been suppressed. 

III. Conclusion

For the reasons discussed above, we will affirm the District Court’s judgment.